Vous êtes sur la page 1sur 9

Managerial employee - vested with powers or prerogatives to lay down and execute

management policies and/or to hire, transfer, suspend, lay-off, recall, discharge,


assign or disciple employees.

Supervisory employees - those who in the interest of the employer, effectively


recommend such managerial actions if the exercise of such authority is not merely
routinary or clerical in nature but requires the use of independent judgment

Appropriate Bargaining Unit - group of employees of a given employer comprised


of all or less than all of the entire body of employees, which the collective interest of
all the employees, consistent with the interest of the employer, indicate to be the best
suited to serve reciprocal rights and duties of the parties under the collective
bargaining provisions of the law.

Labor Organization - any union or association of employees in the private sector


which exists in whole or in part for the purpose of collective bargaining or for
dealingwith employers concerning terms and conditions of employment.

Collective bargaining - democratic framework to stabilize the relation between labor


and management to create a climate of sound and stable industrial peace

Collective Bargaining Agreement (CBA)


- contract executed upon request of either the employer or the exclusive
bargaining representative of the employees incorporating the agreement
reached after negotiations with respect to wages, hours of work and all other
terms and conditions of employment, including proposals for adjusting any
grievances or questions under such agreement

Bargaining Representative - a legitimate labor organization or any officer or agent


of such organization, whether or not employed by the employer." Under this definition
the officer or agent may be a total stranger to the employer, may be a counsel or
president of a mother union. The only requirement is that he is duly authorized to
negotiate by the employees through the union that he represents

Exclusive Bargaining Representative - any legitimate labor organization duly


recognized or certified as the sole and exclusive bargaining agent of all the employees
in a bargaining unit." The bargaining representative of the employees is an entity - the
union - and not the officers of the union. The entity remains though the officers are
changed.

JURISDICTIONAL PRECONDITIONS OF COLLECTIVE BARGAINING


1. Possession of the status of majority representation of the employees'
representative in accordance with any of the means of selection or designation
provided for by the Labor Code
2. Proof of majority representation
3. Demand to bargain
If the three jurisdictional preconditions are present, the collective bargaining should
begin within the 12 months following the determination and certification of the
employees' exclusive bargaining representative. This period is known as the
"certification year."

The duty to bargain collectively means the performance of a mutual obligation to


meet and convene promptly and expeditiously in good faith for the purpose of
negotiating an agreement with respect to wages, hours of work and all other terms
and conditions of employment including proposals for adjusting any grievances or
questions arising under such agreement and executing a contract incorporating such
agreements if requested by either party but such duty does not compel any party to
agree to a proposal or to make any concession. (without the mandatory subjects, CBA is invalid and not
bargaining in good faith)

- When there is a collective bargaining agreement, the duty to bargain collectively


shall also mean that neither party shall terminate nor modify such agreement
during its lifetime(5 years).
- either party can serve a written notice to terminate or modify the agreement at
least sixty (60) days prior to its expiration date. It shall be the duty of both parties
to keep the status quo and to continue in full force and effect the terms and
conditions of the existing agreement during the 60-day period and/or until a new
agreement is reached by the parties.
- No notice during 60 days – automatic renewal valid for 5 years

The automatic renewal clause of Collective Bargaining Agreements means that


although a CBA has expired, it continues to have legal effects as between the parties
until a new CBA has been entered into. This is so because the law makes it a duty of
the parties to keep the status quo and to continue in full effect the terms and conditions
of the existing agreement until a new agreement is reached by the parties

Pending renewal of the CBA, the parties are bound to keep the status quo and to
treat the terms and conditions embodied therein still in full force and effect, until a new
agreement is reached by the union and management.

Four Forms of ULP in Bargaining:


1. Failure or refusal to meet and convene
2. Evading the mandatory subjects of bargaining
3. Bad faith in bargaining, including failure or refusal to execute the collective
agreement, if requested
4. Gross violation of the cba. Each of these four ways of violating the duty to
bargain amounts to ULP

Wage - remuneration or earnings, however designated, capable of being expressed


in terms of money

Impasse - reasonable effort at good-faith bargaining which, despite noble intentions,


does not conclude in an agreement between the parties
- exists when good faith bargaining on the part of the parties has failed to resolve
the issue and there are no definite plans for further efforts to break deadlock.

Deadlock - signals rather the need to continue the bargaining with the assistance of
a third party as conciliator or arbitrator whose first aim is to get the parties back to the
negotiating table and help them craft a win-win solution.

Surface Bargaining - sophisticated pretense in the form of apparent bargaining, does


not satisfy the statutory duty to bargain, not negotiating on the mandatory subjects
- - going through the motions of negotiating” without any legal intent to reach an
agreement. The determination of whether a party has engaged in unlawful
surface bargaining is a question of the intent of the party in question, which can
only be inferred from the totality of the challenged party’s conduct both at and
away from the bargaining table. It involves the question of whether an
employer’s conduct demonstrates an unwillingness to bargain in good faith or
is merely hard bargaining

Blue-Sky Bargaining - “unrealistic and unreasonable demands in negotiations by


either or both labor and management, where neither concedes anything and demands
the impossible”

Boulwarism – take-it-or-leave-it bargaining

Horse Trading Approach – each side eventually compromising initial unreasonable


positions, it advertised its initial proposals as fair and firm

Principle of hold over - in the absence of a new CBA, the parties must maintain the
status quo and must continue in full force and effect the terms and conditions of the
existing agreement until a new agreement is reached

Collective Bargaining Unit - group of employees sharing mutual interests within a


given employer unit, comprised of all or less than all of the entire body of employees
in the employer unit or any specific occupational or geographical grouping within such
employer unit.

APPROPRIATENESS OF BARGAINING UNIT; FACTORS CONSIDERED


1. Will of the Employees – Globe Doctrine
2. Affinity or Unity – Community or Mutuality of Interest
3. Previous bargaining history
4. Employment Status

Globe Doctrine - The desires of the employees are relevant to the determination of
the appropriate bargaining unit. The relevancy of the wishes of the employees
concerning their inclusion or exclusion from a proposed bargaining unit is inherent in
the basic right to self-organization. While the desires of employees with respect to
their inclusion in bargaining unit is not controlling, it is a factor which would be taken
into consideration in reaching a decision.
Community of Interest Rule states that in choosing the appropriate bargaining unit,
there must be a determination of the community of interests of employees. The test
grouping is community or mutuality of interests, such as substantial similarity of works
and duties or of compensation and working conditions, because the basic test of an
asserted bargaining unit’s acceptability is whether or not it is fundamentally the
combination which will best assure to all employees the exercise of their collective
bargaining rights.

There is voluntary recognition when in an unorganized establishment with only one


legitimate labor organization, the employer voluntarily recognizes the representation
status of such as a union. Within 30 days from such recognition, the employer and
union shall submit a notice of voluntary recognition with the Regional Office of the
Department of Labor and Employment which issued the recognized labor union’s
certificate of registration or certificate of creation of a chartered local.

SEBA Certification - process where a union requests the DOLE regional director to
recognize and certify the union as the sole and exclusive bargaining agent (SEBA) of
the bargaining unit it purports to represent to negotiate a CBA with the employer

Certification Election - Process of determining through secret ballot the sole and
exclusive representative of the employees in an appropriate bargaining unit, for
purposes of collective bargaining or negotiation.
- directly involve only two issues: (a) proper composition and constituency of the
bargaining unit; and (b) veracity of majority membership claims of the competing
unions so as to identify the one union that will serve as the bargaining
representative of the entire bargaining unit But some of the employees may not
want to have a union; hence, "No Union" is one of the choices ("candidates")
named in the ballot. If "No Union" wins, the company or the bargaining unit
remains ununionized for at least 12 months, the period known as the 12-month
bar. After that period, a petition for a CE may be filed again.

Consent Election - election voluntarily agreed upon by the parties to determine the
issue of majority representation of all the workers in the appropriate collective
bargaining unit.

Union Election - object is to elect officers of the union

Election Bar - The 12-month Bar - filing of a petition within one (1) year from the date
of recording of the voluntary recognition, or within the same period from a valid
certification, consent or run-off election where no appeal on the results of the
certification, consent or run-off election is pending.
- Existing CBA - filing the petition before or after the freedom period of a duly
registered collective bargaining agreement; provided that the sixty-day period
based on the original collective bargaining agreement shall not be affected by
any amendment, extension or renewal of the collective bargaining agreement.
Contract Bar Rule
- The contract bar doctrine provides that once a contract is executed, the National
Labor Relations Board (NLRB) generally does not permit a representation
election in the unit covered by the contract until the contract expires up to a 3
year limit. This rule applies to a petition by another union to represent the
employees, a petition filed by the employees to decertify, or a petition filed by
the employer. The contract bar doctrine is followed in determining whether or
not an existing collective-bargaining contract will bar an election.
- refers to the existence of CBA. Whre there is an existing CBA which has been
duly registered, a petition for CE may be filed, as already explained, only within
the “freedom”period” which is the last 60 days of the fifth year of the CBA.

Deadlock Bar - a petition for certification election can only be entertained if there is
no pending bargaining deadlock submitted to conciliation or arbitration or had become
the subject of a valid notice of strike or lockout. The principal purpose is to ensure
stability in the relationship of the workers and the management.
- if circumstances show that the cause of not having concluded a CBA was not
the union's fault, such union should not be blamed, and a CE should not be
authorized even though no CBA has been concluded despite passage of twelve
months.
- provides that a petition for certification election can only be entertained if there
is no pending bargaining deadlock submitted to conciliation or arbitration or had
become the subject of a valid notice of strike or lockout. The principal purpose
is to ensure stability in the relationship of the workers and the management

Negotiation Bar - duly recognized or certified union has commenced negotiation with
the employer within the one year period mentioned above, and the negotiation is on-
going

Artificial Deadlock — a deadlock prearranged or preserved by collusion of the


employer and the majority union — is deception of the workers, hence, not a barrier
to a petition for a C.E.

Freedom Period – time when unions are legally allowed to challenge openly and
formally the statue of a union as the exclusive bargaining representative. Also during
that time switching of allegiance among union members or among affiliates or
chapters may be done without risking a charge of disloyalty under the union by-laws
of the CBA’s union security clause
- last 60 days of the CBA’s 5th year of th representational aspect.

Notice Period – proper time to propose modifications to the existing CBA


- Modifying, renegotiating the CBA provisions other than representational, also
called economic provisions

Run-off Election - election between the labor unions receiving the 2 higher number
of voters when a certification election which provides for 3 or more choices results in
no choice receiving a majority of the valid votes cast, where the total number of votes
for all contending unions is at least 50% of the number of votes cast.
- Within ten (10) days from the close of the election proceedings between the
labor unions receiving the two highest number of votes; provided, that the total
number of votes for all contending unions is at least fifty (50%) percent of the
number of votes cast.
- "No Union" shall not be a choice in the run-off election.
- Notice of run-off elections shall be posted by the Election Officer at least five (5)
days before the actual date of run-off election

Certification year bar (One year bar rule) - No petition for C. E. may be filed within
one year from the date of a valid certification, consent, or run-off election or from the
date of entry of a voluntary recognition of the union by the employer.

Hold-over Rule - It is a rule which declares that in the absence of an express or


implied constitutional or statutory provisions prohibiting hold-over, an officer is entitled
to hold office until his successor is appointed and qualified. This rule prevents
disruption of public service in the meantime that a successor is not yet appointed and
qualified to assume the functions of the office.

Consent Election - voluntarily agreed upon by the parties, with or without the
intervention of the Department

Zipper Clause - stipulation in a CBA indicating that issues that could have been
negotiated upon but not contained in the CBA cannot be raised for negotiation when
the CBA is already in effect

Wiley Doctrine - The disappearance by merger of a corporate employer which has


entered into a collective bargaining agreement with a union does not automatically
terminate all rights of the employees covered by the agreement, even though the
merger is for genuine business reasons.

Substitutionary" Doctrine – states that even during the existence of a collective


bargaining agreement executed between the employer and the employees through
their agent, the employees can change the said agent but the contract continues to
bind them up into its expiration date. According to the doctrine, the employees cannot
revoke the validly executed collective bargaining contract with their employer by the
simple expedient of changing their bargaining agent. In the event, the new agent must
respect the earlier contract.
- employees cannot revoke the validly executed collective bargaining contract
with their employer by the simple expedient of changing their bargaining agent

Grievances - Any question by either the employer or the union regarding the
interpretation or application of the collective bargaining agreement or company
personnel policies or any claim by either party that the other party is violating any
provision of the CBA or company personnel policies
Voluntary Arbitration - contractual proceeding whereby the parties to any dispute or
controversy, in order to obtain a speedy and inexpensive final disposition of the matter
involved, select a judge of their own choice and by consent submit their controversy
to him for determination

Compulsory Arbitration - process of settlement of labor disputes by a government


agency (or other means provided by the government) which has the power to
investigate and make an award binding upon the parties.
- system whereby the parties to a dispute are compelled by the government to
forego their right to strike and are compelled to accept the resolution of their
dispute through arbitration by a third party.

Jurisdiction Over CBA Violations


- For a ULP case to be cognizable by the Labor Arbiter, and the NLRC to exercise
its appellate jurisdiction, the allegations in the complaint should show prima
facie the concurrence of two things, namely:
1. gross violation of the CBA
2. violation pertains to the economic provisions of the CBA

Yellow Dog Contract - A promise exacted from workers or prospective employees


that they will not belong to, or form, a union during their employment. Unless the
promise is given, the worker will not be hired, or if already hired will lose his job.

Union-busting - To interfere with, restrain or coerce employees in the exercise of


their right to self-organization.

Run-away shop - An industrial plant moved by its owners frgom one location to
another to escape union labor regulations, or state laws, but the term is also used to
describe a plant removed to anew location in order to discriminate against employees
at the old plant because of their union activities.

Union Shop: Requirements of union shop are:


1. the labor union must be the employee’s bargaining representative, pursuant to
the manner of designation or selection
2. the union shop arrangement must be entered into by mutual agreement; and
3. the conditions of the union shop arrangement must be expressed unequivocally
in the labor contract.

Featherbedding - Is the name given to employee practices which create or spread


employment by unnecessarily maintaining or increasing the number of employees
used, or the amount of time consumed, to work on a particular job.

Bargaining in good faith - A fair criterion of good faith in collective bargaining


requires that the parties involved deal with each other with open and fair mind and
sincerely endeavor to overcome obstacles or difficulties existing between them to the
end that employment relations may be established and obstruction to the free flow of
commerce prevented.
Boulwarism- making a proposal which is not subject to bargaining. In effect there
was to be no bargaining and the union was rendered ineffective or irrelevant. The
company dealt with the union through the employees rather than with the employees
through the union.

Bystander Rule - In bystander rule in certification election, the employer is regarded


as nothing more than a bystander with no right to interfere at all in the election, the
same being the sole concern of the workers.

A company union is a union of employees dominated or under the control of the


employer of said employees.

A union shop - refers to a union security clause in a collective bargaining agreement


whereby the employer agrees to terminate the employment of an employee who has
not become a "member of the union which Is the exclusive collective bargaining
representative of the employees in a bargaining unit within a certain period after the
employment of said employee or has ceased to become a union member.

Lockout refers to the temporary refusal of an employer to furnish work as a result of


a labor or Industrial dispute.

Closed shop - refers to a union security clause in a collective bargaining agreement


whereby the employer agrees not to employ any person who is not a member of the
exclusive collective bargaining representative of the employees in a bargaining unit.

Labor dispute includes any controversy or matter concerning terms or conditions of


employment or the association or representation of persons in negotiating, fixing,
maintaining, changing or arranging the terms and conditions of employment
regardless of whether the disputants stand in the proximate relations of employer and
employee.

Unfair labor practice means any unfair labor practice as expressly defined by the
Labor Code. Essentially, an unfair labor practice is any act committed by an employer
or by a labor organization, its officers, agents or representatives which has the effect
of preventing the full exercise by employees of their rights to self-organization and
collective bargaining.

Rerun election - to an election conducted to break a tie between contending unions,


including between "no union" and one of the unions. It shall likewise refer to an
election conducted after a failure of election has been declared by the election officer
and/or affirmed by the mediator-arbiter.

Agency fee - charged to non-union employees at a workplace that has union


representation. The fee is intended to compensate the union for benefits which are
collectively bargained for that the non-union employee will receive, such as paid
personal days.
Freedom Period – time when unions are legally allowed to challenge openly and
formally the statue of a union as the exclusive bargaining representative. Also during
that time switching of allegiance among union members or among affiliates or
chapters may be done without risking a charge of disloyalty under the union by-laws
of the CBA’s union security clause
- last 60 days of the CBA’s 5th year of th representational aspect.

Kiok Loy Doctrine - A Company's refusal to make counter proposal if considered in


relation to the entire bargaining process, may indicate bad faith and this is specially
true where the Union's request for a counter pro-posal is left unanswered

No strikeout lockout clause - Provision in a collective bargaining agreement through


which the union agrees not to strike and the employer agrees not to lockout
employees for the duration of the contract.

Refusal to bargain - finding made by the administrative agency indicating that either
the employer or the union has failed to bargain.